St. Mary's Law Journal
Speaking the Language of Exclusion: How Equal Protection and Fundamental Rights Analyses Permit Language Discrimination Comment.
In the summer of 1995, the en banc Texas Court of Criminal Appeals in Flores v. State upheld a lower court’s ruling to give a drunk-driving (DWI) offender a year in prison as opposed to probation. The trial judge denied the defendant probation due to his inability to speak English. The county in which the defendant was arrested and convicted did not provide a DWI rehabilitation program in Spanish, leading the judge to determine the defendant would not benefit from probation. In his appeal, Mr. Flores claimed the lower court violated his equal protection and due process rights under the Fourteenth Amendment of the United States Constitution, and his equality rights and due course of law rights under the Texas Constitution. The case invited the court to resolve federal and state confusion over the issue of language and to find constitutional protection for those unable to speak English. The court declined this invitation, instead applying the rigid classification scheme for assessing equal protection claims. Those like Mr. Flores face a combination of difficulties, as they are members of a group which cannot be identical to one based on race or national origin; furthermore, judges can deny state privileges rather than fundamental rights without violating due process theory. Had it accepted the case, the Court could have demonstrated the Fourteenth Amendment analysis can be more flexible than the formulaic one the Texas Court of Criminal Appeals applied. The Court could have reached this result by declaring language-based discrimination as suspect, either because language is presumptively related to national origin or because it is the basis of invidious discrimination. Alternatively, the Court could have taken seriously the rational-basis test, as even minimal scrutiny merited an examination of the fit between denying a probation request and the stated goal of meaningful rehabilitation.
St. Mary's University School of Law
Donna F. Coltharp,
Speaking the Language of Exclusion: How Equal Protection and Fundamental Rights Analyses Permit Language Discrimination Comment.,
St. Mary's L.J.
Available at: https://commons.stmarytx.edu/thestmaryslawjournal/vol28/iss1/5
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